I get asked certain questions over and over, so here is a list of some of the questions I commonly get asked about prenups, and their answers. If you have a question that is not answered by this website, please contact me and I am happy to help out.
When is a good time to start negotiating a prenup?
The main consideration in determining timing is duress. If a prenuptial agreement is signed under duress, then it is valid. An extreme example of duress would be one partner handing the other a prenup the night before the wedding and saying: “sign this or else the wedding is off.” So, you want to leave enough time between the completion of the prenup and your wedding so that duress cannot later on be claimed. The amount of time that should be left depends on the complexity of the prenuptial agreement, but a good rule of thumb is that you want everything signed and notarized at least one month prior to your wedding. To accomplish this, normally you would need to start the prenup process 6 weeks to three months prior to your wedding. To a large extent, the earlier you can get the process started, the better.
If you cannot meet this timeline, unless your prenuptial agreement is something really straightforward, you should seriously consider postponing your wedding. Many states also permit postnuptial agreements. If this is permitted in your state, this may make more sense than a last minute prenup.
What happens if I move to another state during my marriage?
So, for instance, you were living in California when you got married, got a California prenuptial agreement, then later on during your marriage moved to New York. Unless this situation is specifically dealt with in your prenup, then you’ve left it open for the courts to decide who has jurisdiction over your case. However, normally, a well-drafted prenuptial agreement will specifically deal with this jurisdictional issue. There will be a clause that says something like: this agreement is governed by the laws of California and any disputes about the agreement must be adjudicated in California. Even if you do not anticipate moving in the near future, it is a good idea to ensure that your prenup has a clause dealing with jurisdiction.
You may also with to explicitly bar litigation in other jurisdictions. For instance if your partner is from a country such as India, your partner may be able to go back to India and sue for causes of action that do not exist here such as dowry or suing your parents.
Is there any way a prenup can deal with children?
Generally, no. Any provisions regarding custody, visitation, and child support are not enforceable. That being said, sometimes people will include provisions in this regard, as they do provide some guidance to the court. As well, these sorts of provisions can sometimes prevent a rush to court when separation occurs as you and your partner can always follow these provisions when you separate. Note that children can determine other issues in your prenuptial agreement. So, you can make certain aspects of your agreement contingent upon having children – for instance, if there are children, then alimony will be payable (otherwise there will be no alimony).
What’s the relationship between a prenup and estate planning?
You can use a prenup to set a floor for estate planning. For instance, a prenuptial agreement can state that if you pass away, your partner gets a minimum inheritance from you of $X. This is just a minimum – when you create you will and other estate planning documents, you are free to give your partner more. As well, it provides protection to your partner that he or she will not be cut out of your will.
Do prenups always benefit the monied party?
A prenuptial agreement can also be used to create protections for the non-monied party. For instance, if one party is expected to give up her employment and become a homemaker when children are born, the prenup can offer her benefits and protection for this that are not offered by law – e.g. setting up a retirement fund.
As well, in other cases, prenups may be set up to protect inheritances, or between two professionals who are of relatively equal financial strength.
The alternative to a prenup in many cases would be not getting married at all, but cohabiting instead, which provides even fewer protections to the non-monied party.
Have another question about prenuptial agreements that is not answered here?
Feel free to contact me and I am happy to help you out.